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Tuesday, March 01, 2016

Instrumenting courts in India

Studying Indian courts poses multiple challenges. A major barrier is the lack of reliable data. Even the Law Commission of India could not get reliable data from trial courts on arrears and delays. Data from the Supreme Court of India is also not always reliable or consistent. The `Court News' publication of the Supreme Court merely collates the information received from High Courts and publishes it, without verifying the same. Discrepancies are rife in the data, and it has not been updated for nearly two years now. In contrast, advanced jurisdictions have reliable databases on courts. This makes it easier to study courts in those jurisdictions.

What you measure is what you can manage. We are in a vicious cycle of poor information systems feeding into poor management systems which induce poor information systems.

A new approach

The Supreme Court, all the High Courts and most district courts have their own websites. These websites have information relating to cases for the litigants and the lawyers. They maintain basic information about every case such as: date of listing, orders passed, judges presiding, etc. Since lawyers and litigants use these websites to keep track of their cases, the information is more reliable. Currently, data is not extracted by courts from this information. This information lies scattered, often in qualitative format. Daksh and Vidhi's approach has been to scrape data from these websites. The dataset so far can be found here (in csv format). For more Indian court related data, Daksh's database can be accessed after a one-time free registration. These are important new initiatives, which may mark the beginning of a new phase of rational thinking about court administration in India.

Problems faced

Counting a batch of petition/appeal as one case because they're being heard together.

Counting each petition/appeal and each application/motion filed in that case separately.

Different High Courts have different ways of counting `cases'. This makes comparisons between High Courts difficult. Second, even within the same court, information has been found to be missing or entered incorrectly. For instance, in Vidhi's study, about 5.50% of 49,459 cases contained no information. In 12.38% of cases overall, some information was missing. This problem is compounded because it is not clear if these are mistakes or deliberate omissions (like redaction).

While NIC manages all High Court websites, thy are not uniform in their interfaces and the manner of storing data. Some High Court websites, such as those of Gujarat, Karnataka, Delhi, and Bombay are relatively easier to access and use.

The root of the problem

A possible explanation for poor data collection by Indian courts lies in the way courts are managed. At the moment, the responsibility for managing courts lies with judges. Court administration (which includes data collection) is not their primary duty however; nor are they equipped or trained to administer courts. Judges are trained for, and should focus their energies on deciding cases.

This situation was sought to be remedied by the court managers scheme. But the scheme flopped. It flopped because it was a superficial reaction to failures of the judicial administration system. The Thirteenth Finance Commission (paragraph 12.87), which proposed the scheme, did not think through the entire implementation process. Who will recruit court managers? What will be their exact job profile? What are the drawbacks of making the scheme optional for each High Court to implement? How will the interactions between court managers and judges play out? Where would the court managers be located in the judicial hierarchy? What is their accountability? At what price point would it attract the right kind of people from the market? These questions were not analysed at the time. International experience on court administration was also not consulted.

International best practice

Internationally, judges do not go about collecting court data; nor is this job blindly delegated to fresh MBAs rechristened as court managers. Instead, there are separate court administration agencies which play an important role in data collection. Here are some examples:

It should be noted that the Supreme Court has repeatedly suggested (since 1997) to the executive to set up a separate administrative agency for tribunals. However, the executive has dragged its feet on this issue, although it acknowledges the present problems of delays and pendency and is keen on reforms.

Conclusion

Computerisation of existing processes will not generate reliable data as we have shown above. The underlying judicial infrastructure and procedures need to be fully overhauled and business processes of courts reengineered to enable generation of reliable data. This will be a large-scale, time consuming and continuous process. This cannot be done only by IT experts (like NIC) or by judges and lawyers. It would require concentrated inter-disciplinary efforts of the highest order leading up to creation of a talented pool of court administrators. For this, India needs a separate court and tribunal administration agency, like in UK, Australia, Canada and USA. Such an agency should have the authority to re-engineer existing procedures to enable automated data collection. A recent paper by one of us, Towards a tribunal services agency, shows a detailed implementation path to establish such an entity for Indian tribunals. This agency can kick off the virtuous cycle of good data feeding into sound management which feeds into good data.

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